Nepal's Interim Constitution: Its Features &Flaws

Nepal's Interim Constitution: Its Features
&Flaws

After
the 16-hour-marathum discussion on the draft interim
constitution, early in the Saturday morning of Dec. 16,
2006, the leaders of the Seven-Party Alliance (SPA) and the
Chairman of the Communist Party of Nepal-Maoist (CPN-Maoist)
signed on it making the Shah King inept.

Nepalis have a
new Constitution, a new national anthem, and a new “coat
of arms” in other word “emblem” or “insignia” or
“logo”. Millions of Nepalis previously deprived of
citizenship will have citizenship. Nepal is heading to
nationhood rewriting very ground rules anew. Nepalis are
making themselves citizens rather than the subjects of a
king.

The current House of Representatives will give a
life to the Interim Constitution, and then takes its own
life paving the way for giving birth to a new legislature of
330 members, and then the new legislature will form an
interim government that will hold an election for a
constitution assembly of 425 members for crafting a new
Nepal’s constitution.

It is time for King Gyanendra and
his family to checkout of the palace as he has been relieved
from the state affairs. The incoming interim government
might ask the rent for using the palace that belongs to the
people after the Interim constitution comes to effect. The
palace is no more the property of the king inherited from
his predecessor. Soon, his family and he will lose the
stipend they have been receiving for doing nothing but
exploiting the people.

The Interim Constitution of Nepal
is a historical document as it has institutionalized
inclusive democracy by ending the monarchy, and established
the principles of rights to education, health and
employment. Some political parties wanted to make these
rights as the fundamental human rights but the large parties
such as Nepali Congress did not agree with them. However,
the interim constitution opened the doors to an election for
a constitutional assembly. Constitutional experts pointed
out some weak points of the interim constitution. However,
it should be promulgated at the earliest to end the
political mess prevailing in the country.

Convener of
the interim constitution drafting committee, Laxman Prasad
Aryal said that the constitution has made the Nepalese
people sovereign in the real sense of the word turning over
the king's power to reign to the Prime Minister. He made it
clear that from then on any citizen can be the head of
state. Talking to journalists, Mr. Aryal said, “Of course
the nation is now hurtling toward a republican set-up. But
we have yet to see whether it will be “people’s
republic” or “democratic republic”. He appreciated the
SPA and the CPN-Maoist leadership for agreeing on the draft
interim constitution. [1]

Vice President of Nepal
Sadbhavana Party-Anandidevi, Bharat Vimal Yadav said though
the constitution has made the people sovereign, has a
provision for any citizen to be the head of state, and has
guaranteed the fundamental rights and followed the
principles of proportional representation, his party demands
the restructuring of the state following a federal system
and elections for constituencies based on the
population.

Member of Parliament Radheshyam Adhikari
said the weak points of the constitution are the provisions
for making a single person the head of state and the Prime
Minister, for presenting an annual report of the Supreme
Court to the parliament through the Prime Minister and for
avoiding the reality of an opposition party.

Nepali
Congress (NC) General Secretary Ram Chandra Poudel said that
the political parties would continue the practice of
reaching a consensus on any matter of national importance as
they did in the case of the interim constitution. “It is a
document of consensus that will promote a new democratic
culture for peace and democracy,” said Poudel.

Member
of the peace-talks team of the CPN-Maoist, Dev Gurung said
the interim constitution was a remarkable achievement that
paved the way for a constituent assembly. The agreement has
drawn a clear picture of the democratic future of the
nation, he said. However, Gurung said that if the formation
of an interim government was delayed then it would let the
reactionary forces to hatch conspiracy against the new
constitution.

Member of the peace-talks team of the
government and Minister of State for Labor and Transport,
Ramesh Lekhak said that the interim constitution has
incorporated almost every ‘major and minor’ issue raised
by all the political parties. He said, “It has eventually
incorporated the concepts of competitive and multi-party
politics into a system. In essence, it will set the nation
to positive direction toward establishing peace.”

Chairman of the Nepal Peasants and Workers Party,
Narayan Man Bijukchhe said, “We wanted it to be a radical
document. We tried to put education, health and employment
as the fundamental rights of citizens, but couldn’t.” He
said that the SPA leaders had given assurance to bring laws
on enhancing public access to health, education and
employment. “We will take the issues of land reform and
tenancy rights to the public,” he added.

General
Secretary of Left Front, C. P. Mainali said that it had
institutionalized the achievements of Janandolan- II
(People’s Movement in April 2006) through the wider
political consensus. “As it is a common document, all
should toast victory on it”.

Coordinator of the
Interim Constitution Draft Commission, Laxman Aryal said
that it has made the provision for taking human rights as
the guiding principle of the state. Aryal also hailed the
provision of 33 per cent reservation for women in the
parliament.

An industrialist, Rajendra Khetan said,
“We want an immediate end to the transition period.” He
stressed the need for the political parties to reach a
consensus on the economic sector too as they did in the
political sector. “We are convinced that the business
community will not have to grapple with any threats or fear
as the interim document has not given priority to the
nationalization of private property,” he added. He said
that the agreement on the constitution had further
consolidated the understanding between the SPA and the
Maoists. [2]

Addressing the inaugural session of the
second national convention of Tamang Mukti Morcha at
Tudhikhel, Kathmandu, Maoist Politburo Member, Dev Gurung
said that the conservative and orthodox leaders of the
parliamentary parties, still sticking to the Constitution of
1990 and the constitutional monarchy, have delayed the
enactment of the interim constitution. "The government
should immediately implement the interim constitution and
initiate to form an interim government which should announce
the date for an election for a constituent assembly, and the
government should be held responsible for the delayed-peace
deal,” he said. Only the implementation of the interim
constitution and formation of an interim legislature can
reinstate the people's sovereignty, he said, "Further delay
may boost the monarchy and reactionary forces to raise their
heads." He criticized the government for recruiting
soldiers, re-establishing police posts, making appointments
of the ambassadors and transferring the government
employees. "It looks like the current government does not
understand a peaceful language and that is why we have
served an ultimatum of Dec. 30 for correcting all wrong
decisions made by the government," he said. However, he is
optimistic that the country will be a federal state with
regional autonomy and it would guarantee the right of the
indigenous people to self-determination. "Nepali people
emerged victorious in the peaceful and armed struggles and
we are now legitimizing the interim constitution, which will
ensure people's freedom," he said. [3]

On Wednesday, Dec.
20, 2006, speaking at a press conference held in Kathmandu,
President of Rastriya Prajatantra Party (RPP), Pashupati
Shumsher JB Rana said that the announcement of the interim
constitution by the SPA and the CPN-Maoist ignoring his
third largest political party that had won 13 per cent votes
in the past elections was undermining not only the RPP but
also the parliament. The interim constitution should be a
document of common consensus but it has not been even
inclusive. So, the RPP has fundamental concerns over it. The
provision made in the interim constitution for including
only the seven-parties and the Maoists in forming the local
bodies was also an authoritarian attitude and undemocratic
act, and was disregard to the RPP, one of the constituents
of the people's movement, he said. He however said that his
party would provide full support to the Government in the
election for a constituent assembly. [4]

Talking to
reporters, Senior Leader of the Communist Party of
Nepal-Unified Marxist and Leninist (CPN-UML), Bharat Mohan
Adhikari said, "The interim constitution is another big leap
in the political history of Nepal. With this, the country is
about to enter into a new political direction." Convener of
the Maoist-talks team, Krishna Bahadur Mahara described the
interim constitution as a major achievement of the historic
people's movement; and it has made the election for a
constituent assembly a reality. Senior Nepali Congress
leader, Arjun Narsingh KC opined that the interim
constitution is an outcome of political agreements reached
between the SPA and the Maoists on November 08 and Nov 21,
2006. He further said, "The interim constitution has
effectively shifted all the privileges of the King to the
Prime Minister. The King is totally powerless now."
Similarly, Vice-chairman of People’s Front Nepal, Lilamani
Pokhrel said that reaching consensus on the interim
constitution the parties "have made another attempt to a new
political leap". He said, "Now the position of the monarchy
is as good as suspended." The rights to education,
healthcare and employment have been included under the
state's directive principles but these rights will become
fundamental rights after formulating a separate law.
[5]

The interim constitution signed by the SPA and the
CPN-Maoist has no provision for removal of the Prime
Minister from office, and for a checks-and-balance system.
The interim constitution makes the Prime Minister almost
supreme having power to influence the entire state
mechanism. The Prime Minister makes appointments to
constitutional bodies on the recommendation of the
Constitutional Council headed by the Prime Minister. The
Constitutional Council will have no control on the Prime
Minister as almost half of the members of the council the
Prime Minister appoints and others are ex-officio members
such as Chief Justice, and Speaker of the House of
Representatives. However, the SPA leaders defend the interim
constitution. "It is an interim period and we are going to
practice a politics of consensus," said Ram Chandra Poudel,
General Secretary of the Nepali Congress, "So, there is no
question of the Prime Minister becoming a dictator." Poudel
defended that there will be no ruling and opposition parties
in the legislature, and the members in the Constitutional
Council represent different parties, giving enough space for
checks and balance. "We did not even include the provision
for removing the Prime Minister as we know we should run the
government by mutual understanding and consensus until the
constituent assembly writes a new constitution," he added.
[6]

Political commentator and columnist, CK. Lal told
Xinhua on Saturday, Dec. 16, 2006 that the agreement on the
interim constitution has led the political process a step
forward and helped to ease the growing crisis of confidence
between the SPA and the CPN-Maoist. “Although the latest
agreement is one step ahead in the ongoing political
process, there could be complications if the agreement is
not implemented honestly,” said Lal. "So, both the sides
must be honest to implement the agreement if they want to
hold the CA election in time," he added. "However, the
latest agreement has helped the CPN-Maoist to remove its
suspicion about the government's position on CA election,"
said Lok Raj Baral, political scientist. Baral also stressed
the need for unity among the eight political parties to end
the ongoing political process in a definite destination.
[7]

Nepal's major political parties and the Maoists on
Saturday reached a consensus on the interim constitution.
"The Prime Minister, as the chief of executive, would
exercise all the authority vested in the head of state. It
means that the king is suspended till his fate is decided by
the first meeting of the constituent assembly," said Ishwor
Pokharel, leader of the CPN-UML. It was believed that the
interim constitution would not be signed on Dec. 16 as King
Mahendra, father of the current king sacked the first
popularly elected government of BP Koirala in 1960 and
started a dictatorial rule on this day. So, Nepalis
considered it a 'Black Day' in the history of Nepal.
[8]

The king had already been stripped of most of his
powers earlier this year after violent street protests
forced him to give up absolute rule and restore multi-party
democracy. Yuvaraj Ghimire opined that the decision on
transferring all executive powers to the Prime Minister does
not alter the king's position but has satisfied the rebels,
who have been insisting that the king should not be given
any authority while a transitional government is in place.
Yuvaraj Ghimire said, "The king was not exercising any power
for the last six months. He was not given any power so it
puts him in the same position as was continuing for the last
six months." [9]

On Dec. 22, 2006, Chairman of the
organization of Newar community called 'Newa Deya Dabbu',
Malla K. Sundar in a statement has said that the interim
constitution of 2006 recently adopted by the Government of
Nepal has caused frustration and discontent among the
indigenous communities including the Newar as it has failed
to address the issues of state restructuring, inclusive
democracy, democratic republic and communal autonomy even
though it has mentioned the restructuring of the state at
the policy level, but it has not designed to make Nepal a
democratic republic giving autonomy to various communities
pursuant to the aspirations of Nepalis. "Maintaining the
decentralized structure of local bodies under the state
control like in the past and the provision made in the
interim constitution for promoting centralized state control
over their revenues and other areas of their authorities
quite contradicts the principle of the communal autonomy,"
says the statement. Chairman Malla also hinted at the flaws
in the interim constitution saying that it is doubtful that
the proportional representation of all ethnic communities
including the Newar community will be guaranteed in the
upcoming polls for a Constituent Assembly as the same old
205 constituencies are adopted for electing representatives.
The Newar organization has strongly demanded to correct the
flaws in and shortcomings of the interim constitution before
it is endorsed by the cabinet and the parliament. It also
warned of staging another agitation of the indigenous
communities if their concerns are not addressed.
[10]

On Dec. 23, 2006, at the event held on the
occasion of the 51st anniversary of the Nepal Bar
Association in Janakpurdham, lawyers said the proposed
interim constitution has centralized authority by
concentrating power only on the Supreme Court of Nepal
undermining the Appellate and District Courts. Lawyers have
accused the drafters of the interim constitution of not
seriously thinking about the gravity of the judiciary. They
said the interim constitution has curtailed the authority of
the Appellate and District Courts, and even charged the
drafters of the interim constitution of failing in thinking
about the excessive pressure of lawsuit cases in the Supreme
Court, in view of the number of judges it has. [11]

The
Interim Constitution of Nepal of 2006 has 26 parts, 167
sections and 2 annexes

The preamble of the Interim
Constitution states that in view of the people's aspirations
for democracy, peace and progress expressed through various
historical struggles and movements since and before 1951,
serious efforts are made to progressively restructure the
state for the resolution of the problems of class, ethnic,
regional, and gender prevalent in the country.

Signatories declare that the Interim
Constitution of Nepal of 2006 has focused on democracy,
peace, prosperity, progressive socio-economic transformation
and sovereignty of the country, integrity, independence and
dignity to institutionalize the results of the struggles and
revolutions launched by the people until then.

Highlights
of the Interim Constitution of Nepal of 2006
are:

• Sovereignty with the people;

• Formation of
an interim unicameral legislation of 330 members

• Prime
Minister is to call and conclude parliament sessions, and to
present annual programs and policy of the
government;

• Executive power vested in Council of
Ministers;

• Election for a Constituent Assembly of 425
members;

• Two-year tenure for the Constituent Assembly
from the date of its first session;

• A Constituent
Assembly Court for settling the disputes and complaints
about the election for a constituent
assembly;

• National Human Rights Commission to be
upgraded as a constitutional body;

• Formation of
interim local governments such as district development
committees, municipalities and village development
committees on the understanding of the SPA and the
CPN-Maoist;

• Requirement of at least 10, 000 voters'
signature for forming a new political party and
participating in an election;

• Council of Minister to
appoint Chief of Army Staff;

• Amendment to the
Constitution only by two-third majority of
parliamentarians;

• Provision for Referendum on any
issue of national importance;

• Prime Minister to wield
all executive powers of the Head of State;

• Decision on
the monarchy by the first session of the Constituent
Assembly;

• Transfer of the property of late King
Birendra, late Queen Aishwarya and their relatives to a
Trust Fund managed by the Government of Nepal for the
nation's betterment;

• Nationalization of the property
inherited by Gyanendra as a king;

• Fresh oath of office
to be taken by justices of Supreme Court, Appellate Courts,
and District Courts;

• The current House of
Representatives and National Assembly will automatically be
dissolved with the promulgation of the interim
constitution;

• The Constitution of the Kingdom of Nepal
of 1990 will be annulled after the promulgation of the
interim constitution.

The Interim constitution signed by
the SPA leaders and the Chairman of the CPN-Maoist is the
sixth Constitution of Nepal. The first constitution was
introduced by hereditary Prime Minister Padma Shumsher Jung
Bahadur Rana in 1948 to consolidate the rule of his clan.
The second constitution was an interim constitution declared
by King Tribhuvan in 1951 after the fall of the Rana regime.
The third was a democratic constitution promulgated by King
Mahendra in 1958. The fourth constitution was the Panchayat
Constitution of 1962 promulgated by King Mahendra to
consolidate the king’s rule disbanding political parties
and introducing a party-less political system called
Panchayat. The fifth was the Constitution of 1990
promulgated by King Birendra after the people’s movement
against his regime and the Panchayat system.

The
promulgation of the Interim Constitution will most probably
be the ultimate step to crafting a people’s constitution
by the Constituent Assembly. Thereafter, Nepalis will be the
ultimate decisions makers. This will put an end to all sorts
of family rules.

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